Opinion
No. CV10-6002511-S
September 7, 2011
MEMORANDUM OF DECISION MOTION TO DISMISS #104
FACTS
The present action arises out of alleged medical negligence claiming injury in connection with a magnetic resonance imaging (MRI) study. On November 17, 2010, the plaintiff, Rose Benard-Kirk, filed a six-count complaint against the four defendants, Michael Loiacono, D.O., New Britain Anesthesia, P.C., Central Connecticut Health Alliance, Inc. (CCHA), and New Britain MRI Limited Partnership. In her complaint, the plaintiff alleges the defendant Loiacono was a physician providing medical care, diagnosis and treatment specializing in the area of anesthesiology. On October 27, 2008, the plaintiff visited Loiacono for the administration of anesthesia while she was undergoing an MRI study being conducted by New Britain MRI at CCHA's hospital and while under the effects of anesthesia she suffered injuries. In count one, the plaintiff alleges that her injuries were caused by the negligence of Loiacono. In count two, the plaintiff alleges a theory of recovery against Loiacono under the doctrine of res ipsa loquitur.
In his return of service the state marshal attests that on October 28, 2010 he served the defendant Loiacono by leaving process with and in the hands of Cathy Bartell, the practice administrator of New Britain Anesthesia, "who is authorized to accept service for [Loiacono], at 100 Great Meadow Road, Suite 208" in Wethersfield. On December 16, 2010, Loiacono filed a motion to dismiss on the grounds that: (1) the court lacks personal jurisdiction over him because he was not served in accordance with General Statutes § 52-57; and (2) the written opinion letter submitted with the complaint is not sufficiently detailed in accordance with General Statutes § 52-190a. The plaintiff filed an objection thereto claiming the practice administrator represented to the marshal that she was authorized to accept service on behalf of Loiacono. An evidentiary hearing on the issue was held on May 23, 2011 wherein the court heard testimony from both the state marshal and from the practice administrator.
Discussion
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009). "The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985). "[A]n action commenced by . . . improper service must be dismissed." (Internal quotation marks omitted.) Jimenez v. DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008). "The jurisdiction that is found lacking . . . is jurisdiction over the person . . ." (Internal quotation marks omitted.) Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568, 576, 953 A.2d 868 (2008).
"[W]here a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts . . . An evidentiary hearing is necessary because a court cannot make a critical factual [jurisdictional] finding based on memoranda and documents submitted by the parties." (Citations omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 652-54, 974 A.2d 669 (2009). "As a general matter, the burden is placed on the defendant to disprove personal jurisdiction. The general rule putting the burden of proof on the defendant as to jurisdictional issues raised is based on the presumption of the truth of the matters stated in the officer's return. When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction. When jurisdiction is based on constructive service, jurisdiction cannot arise solely from the acts recited in the return." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515, 923 A.2d 638 (2007).
In support of his motion to dismiss, Loiacono argues that he was not served in accordance with General Statutes § 52-57(a) because he was not served in hand or at his usual place of abode. Further, Loiacono contends that the practice administrator for New Britain Anesthesia, was served with only one copy of the writ, summons and complaint for both New Britain Anesthesia and himself. In this regard, Loiacono argues that the service of only one copy is evidence that it was directed to New Britain Anesthesia only. In addition he argues that even if a copy was directed to himself, serving process on a person other than a physician at an office where the physician practices is not proper or sufficient to establish jurisdiction over the physician. Loiacono further argues that the practice administrator was never authorized to accept service on his behalf.
The plaintiff counters that service of process upon Loiacono is sufficient because service upon Bartell as an agent is sufficient to confer personal jurisdiction in instances where the defendant receives actual notice. In particular, the plaintiff argues that, while Loiacono contested Bartell's authority to accept service on Loiacono's behalf, such denials are insufficient to overcome the presumption of truth stated in the officer's return, which indicates that Bartell had authority to accept service on behalf of Loiacono. Finally, the plaintiff argues that, even if Bartell did not have actual authority, she was the apparent agent of Loiacono with apparent authority to accept service on his behalf because she worked at the front desk of his principal place of business and stated that she was authorized to accept service on his behalf. The plaintiff argues, therefore, that it would have been reasonable for the marshal to assume that the practice administrator was Loiacono's agent and that she was authorized to accept service on his behalf.
In his reply, Loiacono further contends that the practice administrator was not authorized to accept service on his behalf nor did she in fact tell the marshal that she had any authority to accept service on Loiacono's behalf. Further, Loiacono argues that there is no authority for the proposition that an apparent agent may be served on behalf of an individual defendant.
The Supreme Court has stated that "[w]hen a particular method of serving process is set forth by statute, that method must be followed . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction." (Internal quotation marks omitted.) Argent Mortgage Co., LLC v. Huertas, supra, 288 Conn. 576. Service of process over individual defendants in a civil action is governed by § 52-57(a), which provides: "Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state." The Appellate Court has stated that "[t]he clear impact of § 52-57(a) is that one of its two alternatives, personal or abode service, must be followed . . ." Hibner v. Bruening, 78 Conn.App. 456, 460, 828 A.2d 150 (2003). Furthermore, "[w]hen a person upon whom service is to be made is designated by statute, service upon any other person as a purported representative is inadequate." Nelson v. Stop Shop Cos., 25 Conn.App. 637, 641, 596 A.2d 4, cert. denied, 220 Conn. 924, 598 A.2d 364 (1991).
Nevertheless, the Supreme Court has stated that the "chief purpose [of § 52-57] is to ensure actual notice to the defendant that the action is pending." (Internal quotation marks omitted.) Argent Mortgage Co., LLC v. Huertas, supra, 288 Conn. 576. In this regard, "service must be effectuated in a way reasonably calculated to provide actual notice." Fine Homebuilders, Inc. v. Perrone, 98 Conn.App. 852, 857, 911 A.2d 1149 (2006), cert. granted, 282 Conn. 901, 918 A.2d 888 (2007). "When notice is given to a defendant of the commencement of a legal action, [however] there must also be substantial compliance with the service of process statutes." Hibner v. Bruening, supra, 78 Conn.App. 461.
There is no specific appellate authority as to whether service on the practice administrator of a medical group is sufficient to constitute service on a defendant member of that medical group. A number of Superior Court decisions have considered similar factual scenarios and determined that such service did not comport with statutory requirements. See Mitchell v. Yale New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV 10 6015881 (May 13, 2011, B. Fischer, J.) [ 51 Conn. L. Rptr. 896] (service upon vice president and general counsel for hospital where defendant worked not sufficient); Dorry v. New Milford Hospital, Superior Court, judicial district of Waterbury, Docket No. X10 CV 09 6004823 (April 29, 2011, Dubay, J.) (service upon risk manager, practice administrator and office managers where defendants worked not sufficient); and Drwiega v. Aferzon, Superior Court, judicial district of New Britain, Docket No. CV 03 0521686 (December 1, 2003, Robinson, J.) (service upon office manager of doctor's office not sufficient). At least one Superior Court decision has determined that service was sufficient when "the marshal went to the doctor's office and gave appropriate process to the person in charge who told him that she was authorized to accept service." See Washington v. Hartford Hospital, Superior Court, judicial district of Hartford, Docket No. CV 03 0824647 (September 9, 2003, Booth, J.) ( 35 Conn. L. Rptr. 442, 443). In Washington, however, "[n]either the office manager nor the doctor [had] denied that the statement was made or that the authority existed." Id.
In the present case, Marshal Zaniewski stated in his return that he served process on Loiacono by leaving process with Cathy Bartell, practice administrator of New Britain Anesthesia, "who is authorized to accept service for [Loiacono]." There is no dispute that such service was not in the hands of Loiacono or at his usual place of abode. "When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction. When jurisdiction is based on constructive service, [however] jurisdiction cannot arise solely from the acts recited in the return." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., supra, 282 Conn. 515.
The plaintiff attempts to place the burden on Loiacono but, as previously stated, there is no dispute that personal or abode service was not effected, therefore, it is the plaintiff's burden to prove constructive service.
After having heard testimony from both marshal Zaniewski and Cathy Bartell this court finds the following facts. The marshal's service was not made in hand or at the defendant Loiacono's abode. At the time of service the marshal provided only one copy of the writ, summons and complaint to Cathy Bartell, who credibly testified that she accepted the copy on behalf of the defendant New Britain Anesthesia and was not authorized to accept service on behalf of the defendant Loiacono. That after receiving the summons and complaint she made a copy of the documents and sent them over to the hospital where she knew Loiacono was located. From these facts it is clear that process of service as to the defendant Loiacono did not comply with the requirements of § 52-57. As a result, this court lacks jurisdiction over the defendant Lociano. As a result of this finding, the court need not address Loiacono's second ground for his motion to dismiss under § 52-190a.
CONCLUSION
For the foregoing reasons, Loiacono's motion to dismiss is granted.
CT Page 18892
MEMORANDUM OF DECISION MOTION TO DISMISS #108 FACTS
The present action arises out of alleged medical negligence stemming from a magnetic resonance imaging (MRI) study. On November 17, 2010, the plaintiff, Rose Benard-Kirk, filed a six-count complaint against the defendants, Michael Loiacono, D.O., New Britain Anesthesia, P.C., Central Connecticut Health Alliance, Inc. (CCHA), and New Britain MRI Limited Partnership. In her complaint, the plaintiff alleges the following facts. Loiacono was a physician providing medical care, diagnosis and treatment specializing in the area of anesthesiology. At all times mentioned herein, he was the agent of CCHA, a corporation, which operates a hospital and provides medical care and treatment. On October 27, 2008, the plaintiff visited Loiacono for the administration of anesthesia while she was undergoing an MRI study being conducted by New Britain MRI at CCHA's hospital. While under the affects of the anesthesia, the plaintiff suffered injuries including severe burns. In count six, the plaintiff alleges that her injuries were caused by the negligence of CCHA, by and through its agents. With her complaint, the plaintiff submitted a two-page written opinion letter from a board certified anesthesiologist pursuant to General Statutes § 52-190a(a).On December 23, 2010, CCHA filed a motion to dismiss on the ground that the written opinion letter submitted with the complaint is not sufficiently detailed in accordance with General Statutes § 52-190a. On March 4, 2011, the plaintiff filed an objection to CCHA's motion to dismiss. The matter was heard at short calendar on May 23, 2011.
DISCUSSION
A party who files a medical malpractice action is required to file both a certificate of good faith and a written opinion letter from a similar health care provider stating "that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion." General Statutes § 52-190a(a). "The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action." General Statutes § 52-190a(c). In Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 545, 979 A.2d 1066 (2009), aff'd, 300 Conn. 1, 12 A.3d 865 (2011), the court further provided that "an action is subject to dismissal under subsection (c) if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion." In particular, "[t]he failure to provide a written opinion letter, or the attachment of a written opinion letter that does not comply with § 52-190a, constitutes insufficient process and, thus, service of that insufficient process does not subject the defendant to the jurisdiction of the court." Morgan v. Hartford Hospital, 301 Conn. 388, 401, 21 A.3d 451 (2011). "Because . . . the absence of a proper written opinion letter is a matter of form, it implicates personal jurisdiction." Id., 402.
As a preliminary matter, the plaintiff argues that she may not even be required to file a written opinion letter because the facts demonstrate that "some standard of care was clearly breached" and "[t]he nature of the injuries alone, are sufficient to support a good faith belief that grounds [exist] for a claim against [CCHA]." CCHA argues that § 52-190a is applicable because the defendants are sued in their capacities as medical professionals, the alleged negligence is of a nature that arises out of the professional-patient relationship and the alleged negligence is substantially related to medical diagnosis or treatment and involves the exercise of judgment.
"[T]he relevant considerations in determining whether a claim sounds in medical malpractice are whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment." (Internal quotation marks omitted.) Selimoglu v. Phimvongsa, 119 Conn.App. 645, 652, 989 A.2d 121, cert. denied, 296 Conn. 902, 991 A.2d 1103 (2010). Nevertheless, "if an expert is not required to establish the medical standard of care, an opinion letter is not required under § 52-190a." Shortell v. Cavanagh, 300 Conn. 383, 393, 15 A.3d 1042 (2011). One such circumstance is where the courts have decided for public policy reasons that expert medical testimony is not required for the standard of care, such as in the case of informed consent. See id., 391. Another such circumstance is "where the professional negligence is so gross as to be clear even to a lay person." (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 567, 864 A.2d 1 (2005). Based upon a review of the complaint, neither of these circumstances is present and that, under the three-part test, the plaintiff's claim sounds in medical malpractice. Therefore, an opinion letter was required pursuant to § 52-190a.
The defendant, CCHA, argues that the written opinion letter attached to the complaint is not sufficiently detailed because it does not indicate any departure of the standard of care by any defendant or elect one of many possible causes of the plaintiff's injuries as the most likely to have occurred. In this regard, CCHA argues that "an inadequate opinion that references only general standards but fails to delineate who allegedly breached those standards and how should not serve as the foundation for a medical negligence suit."
The plaintiff counters that the opinion letter attached to the complaint meets the statutory requirements because it "found evidence for medical negligence" on behalf of CCHA's agents, which may be imputed to CCHA. In this regard, the plaintiff contends that the opinion letter "articulated the standard of care" through a series of FDA guidelines and noted that "[a]nyone of these points may have been breached."
Section 52-190a(a) provides in relevant part: "No civil action . . . shall be filed to recover damages resulting from personal injury or wrongful death . . . in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action . . . has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint . . . shall contain a certificate of the attorney or party filing the action . . . that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant . . . To show the existence of such good faith, the claimant or claimant's attorney . . . shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion." (Emphasis added.)
The Supreme Court has concluded "that the phrase `medical negligence,' as used in § 52-190a(a), means breach of the standard of care and was not intended to encompass all of the elements of a cause of action for negligence." Dias v. Grady, 292 Conn. 350, 359, 972 A.2d 715 (2009). Therefore, "in order to fulfill the requirement of § 52-190a(a) and to provide assurance that there appears to be evidence of medical negligence, a claimant's written opinion from a similar health care provider need not address the issue of causation." (Internal quotation marks omitted.) Wilcox v. Schwartz, 119 Conn.App. 808, 815, 990 A.2d 366, cert. granted, 296 Conn. 908, 993 A.2d 469 (2010). "The ultimate purpose of this requirement is to demonstrate the existence of the claimant's good faith in bringing the complaint by having a witness, qualified under General Statutes § 52-184c, state in written form that there appears to be evidence of a breach of the applicable standard of care. So long as the good faith opinion sufficiently addresses the allegations of negligence pleaded in the complaint . . . the basis of the opinion is detailed enough to satisfy the statute and the statute's purpose." Id., 816.
The author of the written opinion letter is a board certified anesthesiologist. The author states that "[t]he FDA provides guidelines on how to prevent cable and electrode burns during MRI." The author proceeds to list the guidelines. Thereafter, the author states that the guidelines are the standard of care and that "[o]ne or more of [the guidelines was] not followed while Benard-Kirk was undergoing an MRI." In her complaint, the plaintiff alleges that her injuries were caused by the negligence of CCHA. The allegations of negligence include the failure to comply with a number of guidelines listed by the author of the opinion letter. Compare footnote 1 with footnote 2.
In particular, the author states: (1) "Electrodes should be cleared for use in the MRI environment (proper size, compatible)"; (2) "Electrodes should not be used past their expiration date (dry, lack of gel)"; (3) "Even if electrodes and cables are approved for use during an MRI, a serious burn can still develop if the electrodes aren't in complete contact with the skin surface (an air gap between the electrode and the skin)"; (4) "Cables should not form a loop"; (5) "Cables should be kept off the patient's skin by placing a blanket under them"; and (6) "After the MRI study is complete, patients should be examined for possible burns or reddening of the skin under the electrodes."
CCHA argues, however, that the written opinion letter attached to the complaint is not sufficiently detailed because it does not indicate any departure of the standard of care by any defendant or elect one of many possible causes of the plaintiff's injuries as the most likely to have occurred. With regard to the first argument, the opinion letter does not reference CCHA or any of its agents. Rather, the opinion letter states "[w]hen a MRI is being conducted under anesthesia, the anesthesiologist and/or technician usually attach the monitors to the patient." Nevertheless, "[t]here is no requirement in the statute, Wilcox or any other appellate case stating that a written opinion must refer to a particular defendant by name when discussing how he or she was negligent." Steinmann v. Doyle, Superior Court, judicial district of New Haven, Docket No. CV 11 6017158 (May 24, 2011, Wilson, J.). Furthermore, § 52-190a(a) "does not require the plaintiff to identify the name of each individual who acted on behalf of a corporate defendant, either in the complaint or in the written opinion. Nor does the statute presuppose that the opinion expressed in writing appended to the complaint would obviate the need for further pleading and discovery by both sides . . . Were there to be either of those requirements, plaintiffs would likely face insurmountable barriers to commencing and maintaining medical malpractice actions." Ranney v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV 06 5000954 (September 18, 2006, Pittman, J.).
With regard to the second argument, the opinion letter does not state the cause of the plaintiff's injuries. Rather, the opinion letter simply states that "[b]urns may occur from the looping of cables, placing cables near the wall surface of the MRI, allergic reaction to the electrode gel, dry electrode gel, lack of electrode gel, loosened or partially contacting electrodes, use of small (pediatric instead of adult) electrodes, or the heating of the electrode gel." Nevertheless, "a claimant's written opinion from a similar health care provider need not address the issue of causation." Wilcox v. Schwartz, supra, 119 Conn.App. 815; see also Dias v. Grady, supra, 292 Conn. 359 ("[A] requirement that the plaintiff attach a written opinion of a similar healthcare provider that there appears to be evidence of proximate causation would, in many cases, be an insurmountable obstacle to bringing an action").
Therefore, the plaintiff has complied with the requirements of § 52-190a in that the opinion letter states that there appears to be evidence of a breach of the applicable standard of care, which sufficiently addresses the allegations of negligence pleaded in the plaintiff's complaint.
CONCLUSION
For the foregoing reasons, CCHA's motion to dismiss is denied.